Professional Documents
Culture Documents
HIMACHAL PRADESH
MAJITHA HOUSE
SHIMLA 171 002
pertaining to Query Nos. 1 & 2 could not be given, but allowed the
disclosure of the information pertaining to Query Nos. 3, 4 & 5 of the RTI
Application dated 2-7-2014. In the said Order, the PIO asked the SPA
Shri Khachi to provide the name and address of the present SPA of Smt.
Priyanka Gandhi Vadra and liberty was given to the parties to file Appeal
within 30 days before the First Appellate Authority (FAA). The Appellant
filed First Appeal on 2-9-2014 against the Order of PIO-cum-ADM (L&O).
On 28-10-2014, the First Appellate Authority-cum-Deputy Commissioner,
Shimla remanded the case to PIO-cum-ADM (L&O) for fresh adjudication,
as according to him, Shri Kehar Singh Khachi was not the SPA of Smt.
Priyanka Gandhi Vadra at the time of submission of the RTI Application
dated 2-7-2014.
On
23-12-2014, the new SPA of Smt. Priyanka Gandhi Vadra filed an Appeal
before the First Appellate Authority-cum-Deputy Commissioner, Shimla
and on the same day, the First Appellate Authority passed an Interim Order
staying the operation of Order dated 28-11-2014. On 27-1-2015, the First
Appellate Authority-cum-Deputy Commissioner, Shimla allowed the
Appeal of Smt. Priyanka Gandhi and set aside the Order dated 28-11-2014
of the PIO-cum-ADM (L&O), Shimla. The present Appellant first filed
Appeal against the Interim Order dated 23-12-2014 and later on filed the
amended Second Appeal, with the permission of the Commission, on
20-3-2015. It is this Order passed by the FAA on 27-1-2015, which is under
challenge in this Second Appeal.
Parties were heard in detail and have also filed written arguments
alongwith a Judgement of the Honble High Court of Himachal Pradesh on
behalf of the Third Party. This Commission has to decide the legality of the
Order passed by the FAA on 27-1-2015.
Under the RTI Act, 2005, the PIO is required to see if exemptions
under Section-8 are applicable or not? If he feels that any of the exemptions
is applicable, he can refuse to give information and intimate the information
seeker regarding denial of information by quoting relevant provisions of
Section-8. If he feels that none of the exemptions is applicable and he
intends to disclose the information in public interest, he will issue notice
under Section-11(1) to the Third Party within 5 days, if the information
relates to the said Third Party. A perusal of the provisions of Section-11
shows that if the objection of the third party is based on trade or commercial
secrets protected by Law, only then information can be refused. In any
other case, disclosure may be allowed, if the public interest in disclosure
outweighs in importance, any possible harm or injury to the interests of such
third party.
The following part of the order passed by the FAA on 27-1-2015 is
reproduced here under :The Ld. Counsel emphasised in his arguments stating
that Smt. Priyanka Gandhi Vadra is an VVIP provided with
rare security cover under Special Protection Group and the
opinion of the SPG is final and very important in this regard
which have strongly objected to the disclosure of the
information for high security reasons of the appellant. The Ld.
Counsel further argued that this case is covered under the
Special Protection Group Act, 1988 (as amended in 1991, 1994
& 1999) and such information is also barred under
Section-8(e), (g) and (j) of the Right to Information Act, 2005.
Disclosure of the information may endanger the life or physical
safety of the appellant due to the source of information or
assistance derived on the basis of the disclosure of such
information.
provisions
notwithstanding
of
this
anything
Act
shall
have
inconsistent
effect
therewith
Government of the day nor public officials create information for their own
benefit. This information is generated for purposes related to the legitimate
discharge of their duties of office, and for the service of the public for
whose benefit the institutions of Government exist, and who ultimately
(through one kind of import or another) fund the institutions of Government
and the salaries of officials. It follows that Government and officials are
trustees of this information for the people.
In the case of State of Uttar Pradesh Versus Raj Narain, AIR
1975 SC 865 Page, the Honble Supreme Court observed that
In a government of responsibility like ours, where all
the agents of public must be responsible for their conduct,
there can be but few secrets. The people of this country have
a right to know every public act, everything that is done in a
public way, by their public functionaries. They are entitled to
know the particulars of every public transaction in all its
bearing. The right to know, which is derived from the concept
The responsibility of
present case. In the present case, the information is being sought regarding
the permission granted by the State Government to the third party, which is
a public activity and cannot be described as private information and is not
part of persons life and liberty and not protected as a fundamental right. A
perusal of the Order of FAA shows that there is total non-application of
mind. Only Sections have been quoted without showing their applicability
to the facts of the case.
In the present case, RTI Application was filed on 2-7-2014, but the
PIO and the FAA acted in such a manner that no notice was issued to Smt.
Priyanka Gandhi Vadra within 5 days of the receipt of the Application and
efforts were being made to contact her through SPA. The Appellant, in his
RTI Application, did not refer to any Special Power of Attorney. Still
notice was issued to one Shri Kehar Singh Khachi. He, in his letter, had
specifically mentioned that he was no more the Attorney of Smt. Priyanka
Gandhi Vadra, but still his objections were wrongly entertained and an order
was passed on 25-8-2014 and RTI Application was partly allowed. When
the Applicant filed First Appeal against this order, the FAA remanded the
case to the PIO and directed to implead the concerned party or her
representative, whose name was not there before the FAA. The second
SPA Shri S. Ramakrishanan was appointed SPA on 27-10-2014. It means
that from 2-7-2014 to 27-10-2014, there was no SPA for Smt. Priyanka
Gandhi Vadra and RTI Act gives a time of 10 days to the third party to
make submissions against disclosure and in this case, four valuable months
were wasted. Again 20 days time was granted to the 2nd SPA to file same
and similar objections, which stood earlier decided in the case of Shri Kehar
Singh Khachi. And when the PIO, after wasting 5 months, allowed the RTI
Application, the FAA stayed the operation of the Order of PIO through an
Interim Order and ultimately dismissed the RTI Application of the
Applicant.
Section-11(1) of the RTI Act uses the term Public Interest and
Section-8(1)(j) uses the term Larger Public Interest. Chapter-11 of HP
Tenancy & Land Reforms Act, 1972, deals with Control on transfer of
land in Himachal Pradesh. Section-118(2)(h) deals with transfer of land
in favour of non-agriculturists with the permission of the State
Government for the purposes that may be prescribed. It is also provided
that the land has to be put to use within two years or further such period not
exceeding one year, as may be allowed by the State Government for reasons
to be recorded in writing, to be counted from the day on which the Sale
Deed of Land is registered and if he fails to do so or diverts, without the
permission of State Government, the said user for any other purpose, the
land so purchased by him shall vest in the State Government free from all
encumbrances.
The vires of Section-118 of the Act has been upheld in Case titled;
Surdarshna Devi Versus Union of India ( I.L.R. 1978 HP 355 ) in
which it was held as under :The statement of objects and reasons to the Himachal
Pradesh Tenancy and Land Reforms Act makes a reference to
restrictions imposed on purchase of land by non-agriculturists
with a view to avoid concentration of wealth in the hands of
non-agriculturists moneyed class.
10
11
proceedings on 23-7-2015.
Announced
( K.D. Batish )
State Information Commissioner
Himachal Pradesh
Shimla 171 002
Dated : 29th June, 2015.
( Bhim Sen )
State Chief Information Commissioner
Himachal Pradesh
Shimla 171 002